I think the question here is that the Executive is deciding that a law validly enacted by the Legislative Branch is on the face of it unconstitutional and doesn’t need to be followed. They are putting the burden on the people who created and approved the law to defend it - after it had already been passed and signed into law.
I don’t see how there is any precedent that allows the Executive to simply ignore a legitimate law. Obama and the gang could find a test case if they wanted to and then bring a challenge. But why should the burden be on the Legislative Branch to defend a law that it has already approved and in fact has been signed by the Executive? How can a new office holder simply decide that all bets are off, he doesn’t like the law, and he’s simply not going to abide by it?
If the Executive Branch and its legal arm get to do this, then we’re in banana republic territory. This is exactly what they do in Latin America. I have spent many years watching this happen. The attack on the judiciary, particularly the constitutional court, is the hallmark of a dictator.
ping to #140
additional thoughts ...
Re: Arbitrary Presidential Enforement of Laws
Interesting discussion on this topic at http://boards.straightdope.com/sdmb/showthread.php?t=138676 ... some of the postings:
“it’s an understanding between the branches with regard to the separation of powers: the legislature passes the laws, the courts interpret the laws, and the executive is bound to enforce them (whether they want to or not). this understanding, combined with the president and legislature’s oath to uphold the constitution, binds the executive and legislative branches to enforce the rulings of the supreme court. and throughout american history, there have been numerous examples of govermental branches either defying or threatening to defy the supreme court’s rulings.”
“It’s the Executive Branch’s job to send in the National Guard to enforce Supreme Court decisions.”
... right, I can really see Zero doing this ... ha, ha
Zero will send in the national guard after he suspends civil liberties and free elections ... it is coming
Of course the Executive can't ignore a legitimate law. But the President can ignore an unconstitutional law and if he decides a law is unconstitutional he can't be overruled by any court. The only remedies are impeachment and conviction or electoral defeat.
If you want precedent consider the Andrew Johnson impeachment. Congress passed a law over Johnson's veto which provided that the President couldn't dismiss members of his cabinet without advice and consent. Johnson refused to obey the law arguing, correctly,that it was unconstitutional. Congress resorted to its only remedy but failed to convict. It is now firmly established that Johnson's understanding of the Constitution was correct. Nobody even thought of submitting the dispute to the courts. The matter was none of their business.
How can the President “simply decide” that a law is invalid and he won't execute it? By simply deciding and giving orders accordingly. That's what executives do. Who's going to stop him? This doesn't negate the rule of law or republican government. It is a necessary part of both.
The rule of law means that everyone, in and out of government, has to obey the law. That means following the dictates of the Constitution, which are not necessarily the same thing as the latest musings of the Supreme Court. Our republican government makes the people sovereigns, not the courts.
I'm always amazed when people say that the President can't be trusted to understand and follow the law so he should have an absolute duty to obey the Supreme Court, no matter how absurd it's pronouncements may become. The President is elected every four years. Justices have lifetime tenure. Someone is going to get the last word subject only to impeachment. Shouldn't that someone be the guy who has to face the voters?
A junta is a junta, whether its members wear military uniforms or robes. There is just as much potential for tyranny in a judicial regime as in any other and judges need checks on their powers like everybody else. If you want to preserve a free society, you'd better rid yourself of the ridiculous progressive idea that experts in robes from the best law schools can order society to the benefit of all. That idea is no friend of liberty, and neither is anyone who propagates it.